Lo, P. [羅沛然]. (2011). Judicial construction of the Basic Law : the independent judicial power of the courts of the Hong Kong Special Administrative Region. (Thesis). University of Hong Kong, Pokfulam, Hong Kong SAR. Retrieved from http://dx.doi.org/10.5353/th_b4852158

Abstract

The Basic Law of the Hong Kong Special Administrative Region established the legal and judicial systems of the Hong Kong Special Administrative Region (HKSAR) of the People’s Republic of China. The courts of the HKSAR are vested under the Basic Law with the independent judicial power of the HKSAR, and are authorized to interpret the Basic Law. The common law based legal system is maintained in the new order under the Basic Law.
The HKSAR courts have interpreted the Basic Law as the constitution of the HKSAR, and, using the traction provided by the constitutionalization of the Basic Law, made and filled for themselves the role of a constitutional check on the executive and legislative branches of government to ensure that they act in accordance with the Basic Law, with the constitutional jurisdiction to invalidate executive decisions and legislations found to be inconsistent with the Basic Law.
This Thesis considers the exercise of judicial power in the HKSAR along three trajectories. The first tackles the challenges to the legality and legitimacy of the constitutional jurisdiction of the courts of the HKSAR to review legislations of the HKSAR, principally propounded by Mainland Chinese scholarship. The arguments set out in the most representative of such scholarship are each examined and rebutted. Nevertheless, the courts of the HKSAR are vulnerable to the exercise of the power of interpretation by the Standing Committee of the National People’s Congress (NPCSC) of certain provisions of the Basic Law touching upon the review of legislation and the adjudication of cases.
The second concerns the relationship between the HKSAR courts and the coordinate branches of government of the HKSAR, namely the executive authorities and the legislature. Through an examination of the methodologies and procedures in which the HKSAR courts review legislation, it is found that they have calibrated and tempered the process of review, including the countering of justification with deference and the innovation in remedies, to palliate the effect of judicial scrutiny.
The third examines the incidents where the exercise of judicial power in the HKSAR impinges upon a national law element under the Basic Law, the chief of which is the Court of Final Appeal making a reference of provisions of the Basic Law to the NPCSC for interpretation before final adjudication. The Court adopted strategies to resist the making of a reference to the NPCSC, taking a ‘second-best’ approach in limiting the effect and influence of Mainland legislative measures and legal theory in the HKSAR. It is possible for the Court to act as a last bastion of the autonomy of the HKSAR.
This Thesis concludes with a cautious look at the erosive risks to the duty of the HKSAR courts to exercise constitutional jurisdiction posed by the findings above and the trend of indigenization of jurisprudence. The jurisprudence of the HKSAR must, in its own interest, stay cosmopolitan.

The Best PhD Thesis in the Faculties of Architecture, Arts, Business & Economics, Education, Law and Social Sciences (University of Hong Kong), Li Ka Shing Prize, 2010-11.

DC Field

Value

Language

dc.contributor.advisor

Chen, AHY

-

dc.contributor.author

Lo, Pui-yin

-

dc.contributor.author

羅沛然

-

dc.date.accessioned

2013-12-14T10:12:23Z

-

dc.date.available

2013-12-14T10:12:23Z

-

dc.date.issued

2011

-

dc.identifier.citation

Lo, P. [羅沛然]. (2011). Judicial construction of the Basic Law : the independent judicial power of the courts of the Hong Kong Special Administrative Region. (Thesis). University of Hong Kong, Pokfulam, Hong Kong SAR. Retrieved from http://dx.doi.org/10.5353/th_b4852158

-

dc.identifier.uri

http://hdl.handle.net/10722/193081

-

dc.description.abstract

The Basic Law of the Hong Kong Special Administrative Region established the legal and judicial systems of the Hong Kong Special Administrative Region (HKSAR) of the People’s Republic of China. The courts of the HKSAR are vested under the Basic Law with the independent judicial power of the HKSAR, and are authorized to interpret the Basic Law. The common law based legal system is maintained in the new order under the Basic Law.
The HKSAR courts have interpreted the Basic Law as the constitution of the HKSAR, and, using the traction provided by the constitutionalization of the Basic Law, made and filled for themselves the role of a constitutional check on the executive and legislative branches of government to ensure that they act in accordance with the Basic Law, with the constitutional jurisdiction to invalidate executive decisions and legislations found to be inconsistent with the Basic Law.
This Thesis considers the exercise of judicial power in the HKSAR along three trajectories. The first tackles the challenges to the legality and legitimacy of the constitutional jurisdiction of the courts of the HKSAR to review legislations of the HKSAR, principally propounded by Mainland Chinese scholarship. The arguments set out in the most representative of such scholarship are each examined and rebutted. Nevertheless, the courts of the HKSAR are vulnerable to the exercise of the power of interpretation by the Standing Committee of the National People’s Congress (NPCSC) of certain provisions of the Basic Law touching upon the review of legislation and the adjudication of cases.
The second concerns the relationship between the HKSAR courts and the coordinate branches of government of the HKSAR, namely the executive authorities and the legislature. Through an examination of the methodologies and procedures in which the HKSAR courts review legislation, it is found that they have calibrated and tempered the process of review, including the countering of justification with deference and the innovation in remedies, to palliate the effect of judicial scrutiny.
The third examines the incidents where the exercise of judicial power in the HKSAR impinges upon a national law element under the Basic Law, the chief of which is the Court of Final Appeal making a reference of provisions of the Basic Law to the NPCSC for interpretation before final adjudication. The Court adopted strategies to resist the making of a reference to the NPCSC, taking a ‘second-best’ approach in limiting the effect and influence of Mainland legislative measures and legal theory in the HKSAR. It is possible for the Court to act as a last bastion of the autonomy of the HKSAR.
This Thesis concludes with a cautious look at the erosive risks to the duty of the HKSAR courts to exercise constitutional jurisdiction posed by the findings above and the trend of indigenization of jurisprudence. The jurisprudence of the HKSAR must, in its own interest, stay cosmopolitan.

-

dc.language

eng

-

dc.publisher

The University of Hong Kong (Pokfulam, Hong Kong)

-

dc.relation.ispartof

HKU Theses Online (HKUTO)

-

dc.rights

Creative Commons: Attribution 3.0 Hong Kong License

-

dc.rights

The author retains all proprietary rights, (such as patent rights) and the right to use in future works.

-

dc.subject.lcsh

Basic law

-

dc.subject.lcsh

Judicial power - China - Hong Kong

-

dc.subject.lcsh

Constitutional law - China - Hong Kong

-

dc.title

Judicial construction of the Basic Law : the independent judicial power of the courts of the Hong Kong Special Administrative Region

-

dc.type

PG_Thesis

-

dc.identifier.hkul

b4852158

-

dc.description.thesisname

Doctor of Philosophy

-

dc.description.thesislevel

Doctoral

-

dc.description.thesisdiscipline

Law

-

dc.description.nature

published_or_final_version

-

dc.identifier.doi

10.5353/th_b4852158

-

dc.date.hkucongregation

2012

-

dc.description.award

The Best PhD Thesis in the Faculties of Architecture, Arts, Business & Economics, Education, Law and Social Sciences (University of Hong Kong), Li Ka Shing Prize, 2010-11.